The Constitutional Basis of Federalism

Why Federalism?

Federalism and the Powers of National and State Governments in the US Constitution

• Federalism is not mentioned in the US Constitution but is reflected in the division of powers between the national and state governments.

• Reasons for federalism: to prevent tyranny of the national government, keep government closer to the people, and to gain the agreement of the states to the Constitution.

Division of Powers:

• Delegated powers: Expressed or enumerated powers specifically given to the national government in Articles I-V of the Constitution.

• Implied powers: Powers not expressly stated but reasonably inferred from the Constitution, such as the Necessary and Proper Clause (Article I, Section 8, Clause 18).

• Inherent powers: Powers that the national government possesses because it is sovereign.

• Concurrent powers: Powers shared by both the national and state governments.

• Reserved powers: Powers specifically belonging to the states that were not delegated to the national government or prohibited to the states by the Constitution, according to the 10th Amendment and Article IV of the Constitution.

• Prohibited powers: Powers that are denied to the national government, state governments, or both, as stated in Article I, Sections 9 and 10, and the Amendments. For example, neither the national government nor state governments can pass an ex post facto law or a bill of attainder.

Key Constitutional Clauses:

• The 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

• The 14th Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

• The Commerce Clause: Article I, Section 8, Clause 3 of the Constitution gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

The Necessary and Proper Clause: Congress has the power “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Powers of Government Under Federalism

• National Powers (Expressed, Implied, Inherent):

  - Regulate foreign and interstate commerce

  - Coin and print money

  - Provide an army and navy
  - Declare war

  - Establish federal courts below the Supreme Court

  - Conduct foreign relations

  - Make all laws "necessary and proper"

  - Acquire and govern U.S. territories and admit new states

  - Regulate immigration and naturalization

• National and State Powers (Concurrent):

  - Levy taxes

  - Borrow money

  - Spend for the general welfare

  - Establish courts

  - Enact and enforce laws

  - Charter banks

• State Powers (Reserved):

  - Regulate intrastate commerce

  - Establish local governments

  - Establish public school systems

  - Administer elections

  - Protect the public's health, welfare, and morals

  - Regulate corporations

  - Establish licensing requirements for certain regulated professions

Federalism in Practice

Interstate Relations in the US Constitution

Article IV of the US Constitution governs interstate relations and outlines several provisions:

• Full Faith and Credit Clause: require states to recognize laws and legal documents of other states, such as birth certificates, marriage licenses, driver's licenses, and wills.

• Privileges and Immunities Clause: prohibits states from unreasonably discriminating against residents of other states. Non-residents have the right to travel through other states, buy, sell, and hold property, and enter into contracts (political and professional rights excluded).

• Extradition: states may return fugitives to the state from which they have fled to avoid criminal prosecution at the request of the governor of the state.

• Interstate compacts: states may make agreements, sometimes requiring Congressional approval, to work together to solve regional problems. Examples are "hot-pursuit agreements," parole and probation agreements, the Port Authority of New York and New Jersey, and regulating the common use of shared natural resources.

Guarantees to the States

Article IV of the Constitution provides national guarantees to the states, including:

• Republican form of government

• Protections against foreign invasion

• Protections against domestic violence

• Respect for the geographic integrity of states

Establishing National Supremacy

• Article VI of the U.S. Constitution contains the Supremacy Clause, which helps to resolve conflicts between national and state laws.

• The Constitution, its laws, and treaties are the supreme law of the land.

• Conflicts between national and state laws are bound to arise because two levels of government are operating within the same territory and over the same people.

• The Supreme Court upheld the supremacy of national laws in McCulloch v. Maryland (1819).

• The Supreme Court continued to expand the powers of Congress over interstate commerce in Gibbons v. Ogden (1824).

Advantages and Disadvantages of Federalism:

• Advantages of Federalism:

  - Ideally suited to large geographic area because it encourages diversity in local government

  - Avoids concentration of political power

  - Accommodated already existing state governments

  - States serve as training grounds for national leaders

  - Keeps government close to the people

• Disadvantages of Federalism:

  -Inflexibility inherent in a written constitution

  - Complex, with many governments to deal with

  - Duplication of offices and functions

  - Conflicts of authority may arise

McCulloch v. Maryland (1819)

• Maryland imposed a tax on the Baltimore branch of the Second National Bank of the United States.

• James McCulloch, chief cashier, refused to pay the tax and the case was appealed to the Supreme Court.

• The Marshall Court ruled that although creating a national bank is not an expressed power of the national government, it can be implied by the Necessary and Proper Clause (Article I, Section 8, Clause 18).

• This ruling established the implied powers of the national government and national supremacy.

• National supremacy is the basis used to strengthen the power of the national government.

Gibbons v. Ogden (1824)

• In Gibbons v. Ogden (1824), the Supreme Court determined the definition of commerce and whether the national government had exclusive power to regulate interstate commerce.

• The case involved a dispute between New York state-granted monopoly on steamboats and a federal license to operate boats in interstate waters.

• The Marshall court defined commerce as including all business dealings and held that the power to regulate interstate commerce belongs exclusively to the national government.

• This decision established the principle that the national government has broad powers to regulate economic activity under the Commerce Clause of the Constitution.

United States v. Lopez (1995)

• The case was about the Gun Free School Zones Act of 1990, which made it a federal offense for an individual to possess a firearm in a school zone.

• Alfonso Lopez carried a concealed weapon into his San Antonio high school and was charged with violating this federal law after the state charges were dismissed.

• Lopez challenged his conviction, arguing that the Gun Free School Zones Act was an unconstitutional exercise of Congress's power under the Commerce Clause.

• The federal government argued that it had the authority to ban guns in schools under its commerce power because guns in school led to gun violence, which ultimately affects the school's condition and the population's well-being.

• In a 5-4 decision supporting Lopez, the Supreme Court found that the 1990 Gun Free School Zones Act did violate the Constitution because Congress was overreaching its powers granted under the Commerce Clause.

• The case was seen by some experts as signaling a shift in the Court's interpretation of the Commerce Clause after nearly 50 years of rulings that resulted in an expansion of Congress's power.

Federalism Today

Federalism has evolved to meet changing societal needs and challenges since the founding of the US.

Dual Federalism:

• Early interpretation of federalism (1789-1932) saw state and national governments as supreme in their respective spheres of influence.

• Often referred to as "layer cake federalism."

• States had sole responsibility for education, national government had sole responsibility for foreign policy issues.

Cooperative Federalism:

• Shifted interpretation of federalism to the national and state governments sharing policymaking and cooperating in problem-solving in the 1930s.

• Often referred to as "marble cake federalism."

• Grew from New Deal policies and need for increased government spending during the Great Depression.

• Example: the cooperation between national and state governments to build the national interstate highway system.

New Federalism:

• During Nixon, Reagan, and George H. W. Bush administrations, national government aimed to place more responsibility on the states for grant spending.

• Goal of new federalism is devolution, transferring power to political subunits.

• Example: welfare reform legislation returning more authority over welfare programs to the states.

Fiscal Federalism:

• National government uses spending, taxation, and grants to influence state and local governments.

• Grants-in-aid programs are money and resources provided to states for specific projects or programs.

• Categorical grants have a specific purpose defined by law.

• Block grants are general grants that can be used for various purposes within a broad category.

• Revenue sharing is a no-strings-attached form of aid.

• Mandates are requirements imposed by the national government on state and local governments.

• Example of a mandate: the Americans with Disabilities Act (1990) requiring public buildings to be accessible to people with disabilities.

• Unfunded mandates require states to meet requirements at their own expense.

• The Unfunded Mandate Reform Act (1995) imposed limitations on Congress's ability to pass unfunded mandate legislation.